Choices of Evil

I have posted before about the Lesser of Two Evils. In December of 2016, I spoke of the Catholic Doctrine of Double Effect as a better formulation for Christians of the doctrine of the Lesser of Two Evils, in a post called, “Ethics and Expediency.” What most of us do not realize is that, in some form or another, the principle of the Lesser of Two Evils is also enshrined into various laws, and is regularly debated by legislatures around the country. Of course, many times legislatures do not realize that this is what they are debating, but it is. And, in order to do that, they have to rank various parts of human existence into priorities. A higher priority part of human existence takes precedence over a lower priority part of human existence. I do not think that the philosopher Jeremy Bentham is right when he says, “It is with government as with medicine, its only business is the choice of evils. Every law is an evil, for every law is an infraction of liberty.” Nevertheless, he makes an excellent point about how laws tend to restrict unfettered action, in some way or another.

But, in law there is a more specific application of that doctrine to some very specific actions that would normally be illegal under existing law. In some legal texts it is spoken of as the “Choices of Evil Doctrine.” The New York University Law Review says:

“The general justification defense, also known as the choice-of-evils doctrine, permits a criminal defendant to seek acquittal on the grounds that his crimes were necessary to prevent greater harm from occurring. … In addition, the justification defense may arise in a scenario … where conditions are such that breaking the law causes less harm than obeying it. … In its most basic form, the justification defense allows a defendant to seek acquittal on the grounds that his actions, though illegal, were necessary to prevent a greater harm from occurring.” — Adav Noti, “The Uplifted Knife: Morality, Justification, and the Choice-of-Evils Doctrine,” New York Law Review, Vol. 78, No. 5, November 2003.

I was surprised to find out that the oldest USA expression of such a statute is found in the New York Penal Code, and this is the most often cited statute in America by a criminal defendant. Noti states that four conditions must be satisfied for a criminal defendant to be able to use this doctrine (ibid):

First, the action must have been “an emergency measure to avoid .. injury which is about to occur.”

Second, the victim must be blameless; he cannot claim justification if he played a role in creating the emergency situation.

Third, the justified criminal act must be necessary to prevent the injury from occurring.

Fourth, the harm caused by the defendant’s action must, “according to ordinary standards of intelligence and morality,” be less than the harm that the violated statute was designed to prevent.

It needs to be noted that there can be more than one law of this type in the same State. In some states, some additional variations of this idea are ensconced also in Good Samaritan laws. But, clearly enshrined in this type of law is the same type of thinking that is found in the Catholic Doctrine of Double Effect. There are various examples that can be used to show how this doctrine is applied. For instance:

You see someone drowning, and you steal your neighbor’s boat in order to go rescue the person. Regardless of what you might think, legally you have committed a crime by stealing your neighbor’s boat. You could be brought to trial. If the boat is damaged in any way, you could be held civilly liable for the damage. Were you to be arrested and prosecuted, you would use the defense of the Choices of Evil.

A classic one that happened in real life and began some of the Good Samaritan laws several decades ago is the person who came upon the scene of a car accident and feared that the car might catch on fire, and thus pulled the victim out of the car, causing some additional injury. The victim sued, on the ground that the person was not a qualified medical emergency professional. The country was horrified at the victim, and Good Samaritan laws began to be passed, because it was held by the public that the additional injury caused by the non-qualified person was a lesser evil than letting the victim burn alive.

An odder hypothetical would be an, “automotive brake failure, where the driver could be forced to choose into which building or structure he will crash to stop his car.”

I am less interested in the law than in pointing out the moral underpinnings behind these type of laws. And, the reason I wish to point out the moral underpinnings is because during the elections one had Christians justifying their refusal to vote on the grounds that a Christian may not willingly choose any evil. The examples above are not from the election, but from situations that are quite possible in real-life scenarios. They actually do happen on a regular basis around the country. Most of the Christians who claim that a Christian may not willingly choose evil have never considered our laws and our instinctive reactions when confronted with situations of the type above. I suspect that most Christians would cheerfully break the law and steal their neighbor’s boat in order to rescue a drowning person. It does no good to argue that no crime was committed, nor to claim that the situation meant that the boat was somehow community property. No, when you take your neighbor’s boat, you break the law and are liable to judgment. But, the scorn you will receive from your fellow citizens should you not steal the boat will quickly show you that instinctively we all believe in the scenario of the Lesser of Two Evils, or the Doctrine of Double Effect.

Now that someone may choose not to vote is their decision. In this country, it is not considered a moral evil not to vote. However, that someone may choose not to vote and then claim the moral justification that a Christian may not choose evil, I will debate. Our instinctive behavior is that we need to get involved and help. I will go farther and argue that this instinctive behavior, particularly found in Christians (that we need to be involved and help) is evidence that our internal moral code (see Romans) is in favor of the ethical approach of the Lesser of Two Evils, or of the Doctrine of Double Effect. I will further argue that this is a Spiritual deposit found in us that helps guide us as to how to live in a world in which evil is currently unavoidable. The doctrine that a Christian would not choose to commit evil cannot readily be applied to the variety of events and cases that are found in real life when choices must be made. Let me give you another couple of examples:

“For example, if a man has been drinking and drives his unconscious and dying wife to the emergency room, and he is subsequently charged with driving under the influence (DUI), he will argue that driving drunk was the better of the two evils. When the alternative is his wife dying, he could argue that he acted out of necessity.” As the article from which I quoted points out, you must believe that the deliberate commission of the criminal act was necessary to prevent a greater evil. [Note that the prosecutor will argue that you should have called 911, but this was a case that was actually won by the defense.]

“Tamara gets lost while hiking in a remote, mountainous area. After wandering around for hours with the temperature dropping, Tamara finds a locked cabin. Tamara breaks a window and climbs inside. Once inside, Tamara prepares some canned chili, drinks tap water, and uses the telephone to call law enforcement. Tamara could probably plead and prove choice of evils as a defense to burglary and theft in many jurisdictions. Tamara was confronted with two harms: harm to her personal safety and well-being and harm to the real and personal property of another.”

Those who claim that a Christian may choose no evil, may answer by redefining evil to not include property laws, etc. However, the contradiction is that should I break into a cabin, as Tamara did in the example above, without any justification, those same Christians would call that a morally wrong act and would have no problem with my being sent to jail. The fact that the same act is called morally wrong in one example and not morally wrong in another shows how advocates of the Christian-choosing-no-evil approach are forced to change definitions in order to avoid saying that the Doctrine of Double Effect better fits our current life than the doctrine which they propound.

For those who claimed that they did not vote because a Christian may not choose evil; they are philosophically and doctrinally wrong. They may choose not to vote. But, they may not realistically claim that they did not vote because of a particular Christian doctrine related to evil. The most common Christian doctrine related to choosing evil in real life is not that you are choosing evil, but that you are choosing a greater good, which also requires you to either choose an evil or commit an actual evil. This is the doctrine of double effect.

Note: before someone tries to claim that you could justify the Inquisition with this approach, umm, nope, anymore than this justifies killing gang members because you can prophylactically stop them from robbing or killing. Every doctrine has its limitations because no doctrine exists in isolation.

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Fascinating! Writing as a layman, could it be though, that under the circumstances listed, that the actions aren’t morally evil? But then I admit it’s hard to imagine how driving drunk somehow isn’t. Or breaking and entering somehow isn’t.